Citation Nr: 9903266
Decision Date: 02/04/99 Archive Date: 02/10/99
DOCKET NO. 97-31 923 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Whether termination of Department of Veterans' Affairs (VA)
death pension benefits due to the appellant's holding herself
out to the public as the spouse of another person of the
opposite sex was proper.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1954 to
March 1956. He died in July 1974. The appellant is the
surviving spouse of the veteran.
This matter comes before the Board of Veterans' Appeals
(Board) from a May 1997 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in San Juan,
Puerto Rico, which terminated the appellant's VA death
pension benefits, holding that the appellant was not entitled
to surviving spouse status for purposes of said benefits
because she held herself out to the public as the spouse of
another person of the opposite sex.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the appellant's claim has been developed.
2. The appellant and the veteran were married in December
1954 until the veteran's death in July 1974.
3. The appellant was in receipt of VA death pension benefits
as the surviving spouse of the veteran since July 1974; such
benefits were terminated in May 1997, effective from April
1980.
4. The appellant has not remarried.
5. The evidence shows that the appellant lives with another
person of the opposite sex, but it does not show that she
holds herself out to the public as the spouse of that person.
CONCLUSION OF LAW
The termination of VA death pension benefits due to the
appellant's holding herself out to the public as the spouse
of another person of the opposite sex was improper.
38 U.S.C.A. §§ 101(3), 5107 (West 1991); 38 C.F.R. § 3.50(b)
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
Initially, the Board finds that the appellant's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). A well-grounded claim is one that is meritorious on
its own or capable of substantiation. Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App.
609, 610 (1992). The appellant has not alleged that any
records of probative value that may be obtained and which
have not already been associated with his claims folder are
available. Accordingly, the Board finds that all relevant
facts have been properly developed and no further assistance
to the appellant is required to comply with the duty to
assist, as mandated by 38 U.S.C.A. § 5107(a).
As noted above, the appellant is seeking restoration of VA
death pension benefits as the surviving spouse of the
veteran. The record discloses that the appellant was awarded
said benefits as the veteran's surviving spouse, effective
from the date following the veteran's death in July 1974.
However, as stated above, said benefits were terminated in
May 1997, effective April 1980, by RO decision that found
that the appellant lived with another person of the opposite
sex and held herself out to the public as the spouse of that
person.
The evidence of record consists of a VA Declaration of
Marital Status form; a VA Statement of Income and Net Worth
form; several VA Improved Pension Eligibility Verification
Reports (EVR); two VA Field Examination reports; a VA medical
examination report; and several lay statements made by the
appellant and others.
The Declaration of Marital Status form is dated April 1975
and indicates that the appellant was the widow of the
veteran.
The Statement of Income and Net Worth form, dated March 1980,
reflects that the appellant had not remarried since the death
of the veteran.
The claims file contains seven EVRs that are dated from 1987
to 1993. They all indicate that the appellant had not
remarried since the veteran's death.
A January 1996 VA medical examination report reflects that
ASC, the person with whom the appellant now lives, was seen
for a psychiatric evaluation. The report reflects that he
indicated that he was a widower and that he had not married
the appellant, described as "his second wife," because she
was a veteran's widow, received a VA pension, and would stop
receiving said benefits if they got legally married.
In light of the above VA report, a VA field examination was
conducted to determine whether or not the appellant had
remarried or held herself out to the public as remarried to
ASC. The report of that field examination, dated November
1996, reflects that ASC was personally visited in November
1996. The report indicates that the appellant stated that
she lived with ASC, but not consensually. Inspection of the
bedrooms of the home indicated that they lived in separate
bedrooms. The report shows that a neighbor was asked if the
appellant and ASC were living consensually, and the neighbor
stated that she did not know. The field examiner concluded
that the appellant and ASC were not living consensually. A
November 1996 statement by the appellant, associated with the
field examination report, avers that she lived with ASC, but
not as husband and wife.
A subsequent field examination was conducted in March 1997.
The report of that examination indicates that ASC and the
appellant were interviewed in March 1997. The report
concludes that they were living consensually. Attached
statements, apparently made by the appellant and ASC,
indicate that they live together and have done so since April
1980.
The most recent evidence of record are two additional lay
statements by the appellant. They are both dated in May 1997
and assert, in essence, that the appellant was the widow of
the veteran, had not remarried, and lived with ASC as part of
a friendship.
Based upon the evidence of record in May 1997, the RO issued
an administrative decision that the appellant may no longer
be considered as the unremarried widow of the veteran for VA
death pension benefits purposes, effective April 1980. In
providing the reason and bases for that decision, it was
noted that the appellant lived with ASC and held herself out
openly to the public as his spouse since April 1980. The
appellant's VA death pension benefits were subsequently
terminated, effective April 1980.
II. Analysis
The law provides that VA death pension benefits are
available, under certain conditions, to surviving spouses of
veterans who die from nonservice-connected disabilities.
38 U.S.C.A. § 1541 (West 1991); 38 C.F.R. § 3.3(b) (1998).
A surviving spouse of a veteran is defined as a person of the
opposite sex whose marriage to the veteran meets certain
requirements pursuant to 38 C.F.R. § 3.1(j) (1998), and who
has not remarried or has not, since the death of the veteran,
"lived with another person of the opposite sex and held
himself or herself out openly to the public to be the spouse
of such other person." 38 C.F.R. § 3.50(b)(2) (1998).
The Board notes that, in deciding claims for VA benefits,
when "there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the
claimant." 38 U.S.C.A. § 5107(b) (West 1991).
In this case, after review of the evidence, and giving the
benefit of the doubt to the appellant, the Board finds that
the evidence shows that the appellant, while living with
another person of the opposite sex, does not hold herself out
to the public as the spouse of that person. In making this
decision, the Board first notes that there is no evidence to
suggest that the appellant had remarried subsequent to the
death of the veteran. In every pertinent VA form and lay
statement in the claims file, the appellant indicated that
she was not remarried. Even the RO, in its May 1997 decision
to terminate the appellant's death pension benefits, did not
conclude that the appellant had remarried. It did determine
that the appellant held herself out to the public as the
spouse of another person of the opposite sex, namely ASC.
The Board disagrees.
The evidence of record does show that the appellant currently
lives with ASC and has done so since April 1980; even the
appellant admits to this fact. However, that is not
sufficient grounds to terminate the appellant's surviving
spouse status. The preponderance of the evidence must also
show that the appellant holds herself openly to the public as
the spouse of ASC. 38 C.F.R. § 3.50(b) (1998). Here, the
evidence supporting that conclusion is ASC's VA psychiatric
examination report and the March 1997 field examination
report. The psychiatric examination report indicates that
ASC stated that he had not married the appellant because she
would lose her VA benefits; however, the Board finds this
evidence probative only to the issue of whether ASC would
marry the appellant. It is not probative of the issue of
whether the appellant considers herself the spouse of ASC, or
whether she holds herself out to the public as such. In
addition, although the March 1997 field examination report
concluded that the appellant and ASC were living
consensually, it provides no objective evidence for this
conclusion. In fact, it shows that, upon interviewing a
neighbor, the neighbor "did not know" if the appellant and
ASC were living consensually. Even if the Board accepts the
report's conclusion that the two were living consensually,
this fact does not necessarily support the conclusion that
the appellant held herself out to the public as the spouse of
ASC.
Specifically refuting the March 1997 field examination report
is the November 1996 VA field examination report which
concluded that the appellant and ASC were not living
consensually, providing objective evidence that they lived in
separate bedrooms. Moreover, the Board finds no evidence in
the claims file where the appellant suggested that she
considered ASC to be her spouse. She consistently indicated
on all her VA forms and in her lay statements that she is not
remarried. She has described her relationship with ASC as
one of "friendship."
Overall, giving the benefit of the doubt to the appellant as
per 38 C.F.R. § 5107(b), the Board finds that the evidence of
record supports the conclusion that the appellant does not
hold herself out to the public as the spouse of another
person of the opposite sex. Thus, the Board finds that
termination of her VA death pension
benefits for this reason was improper. Consequently, the
appellant's claim is granted.
(CONTINUED ON NEXT PAGE)
ORDER
The appeal is granted.
A. BRYANT
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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